United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted March 8, 2007

Decided March 14, 2007

Before

Hon. DANIEL A. MANION, Circuit Judge 

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge 

No. 06-2115

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CORNELIUS JERMAINE BENSON,

Defendant-Appellant.

Appeal from the United States District

Court for the Northern District of

Indiana, Fort Wayne Division.

No. 05 CR 48

William C. Lee, 

Judge.

O R D E R

In 2005, Cornelius Benson was charged with the armed robbery of a federally

insured credit union, see 18 U.S.C. §§ 2, 2113(a), (d), and possessing a firearm

during a crime of violence, see 18 U.S.C. §§ 2, 924(c). A jury found Benson guilty of

armed robbery but acquitted him of firearm possession. The district court

sentenced him to 285 months’ imprisonment.

Benson seeks to appeal his conviction, but his appointed counsel moves to

withdraw because he cannot discern a nonfrivolous issue for appeal. See Anders v.

California, 386 U.S. 738 (1967). Benson has filed a response to counsel’s motion. 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 06-2115 Page 2

See Cir. R. 51(b). Counsel’s supporting brief is facially adequate, so we limit our

review to those potential issues identified by counsel and by Benson. See United

States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 1997).

At Benson’s jury trial, his counsel admitted in opening statement that

Benson was one of two men who committed the robbery. Benson’s counsel,

however, argued that Benson did not possess a gun at any time—was therefore

unarmed— and did not know his accomplice had a gun. Following opening

statements, the judge excused the jury and questioned Benson under oath to see if

he understood and agreed with the strategy taken by his counsel of conceding to the

lesser-included offense of unarmed robbery. Benson responded that he had

discussed the trial strategy with his counsel to his satisfaction and that he

supported it. 

In light of Benson’s admission, the parties stipulated to many facts

surrounding the robbery, and the trial focused on whether Benson and his

accomplice had used handguns. At the end of the trial, the district judge instructed

the jury on both charged counts, as well as the lesser-included offense of unarmed

robbery, because of Benson’s admission to that crime. The jury sent a question to

the judge, asking which forms they needed to complete to record their verdict. The

judge provided the jury with general instructions about the appropriate forms to

complete, as agreed upon by both counsel. During his explanation the judge added,

“The defendant has, in effect, admitted through his statements and arguments, that

he committed the lesser-included offense.” Afterward, the jury returned a verdict of

guilty of armed robbery and not guilty of possession of a handgun during and in

relation to a crime of violence. 

Counsel first considers whether Benson could argue that his armed robbery

conviction is unsupported by sufficient evidence. Such a challenge would be “an

uphill battle,” see United States v. Wallace, 212 F.3d 1000, 1003 (7th Cir. 2000), and

we agree that it would be frivolous here, because a rational fact finder could have

found that the essential elements of the crime were established beyond a reasonable

doubt. The trial evidence included Benson’s admission that he robbed the federally

insured credit union, the testimony of three witnesses stating that both robbers

carried handguns, surveillance video of the robbery, the discovery of a shoe print

matching Benson’s at the spot where he vaulted the teller counter, the discovery of

the getaway car, and the discovery of bait money from the credit union in Benson’s

possession. Thus, the evidence rationally supported a finding of Benson’s guilt of

armed robbery under 18 U.S.C.§ 2113. For similar reasons, the evidence also

supported a finding that Benson was guilty of aiding and abetting the armed

robbery committed by his accomplice. An aider and abetter is responsible to the

same degree as a principal, see 18 U.S.C. § 2, and the jury was so instructed. 
No. 06-2115 Page 3

Accordingly, a reasonable fact finder could have found Benson guilty of armed

robbery either because Benson carried a gun during the robbery or because he aided

and abetted his armed accomplice.

Counsel also considers whether Benson could argue that his conviction for

armed robbery was inconsistent with the jury’s finding that he did not possess a

handgun. We agree with counsel that any challenge on these grounds would be

frivolous because the verdicts are not inconsistent. If the jury could rationally find

that Benson knowingly aided an armed robbery, as discussed above, then his guilt

on that count does not require that he also be convicted of possessing the handgun

alleged in the § 924(c) count. See Wallace, 212 F.3d at 1004. Furthermore,

acquittal on the possession count does not dictate acquittal on the armed robbery

count because each count is treated as a separate indictment that is independent of

the verdict on any other count. See United States v. Powell, 469 U.S. 57, 62-63

(1984); Castillo v. United States, 148 F.3d 770, 774-75 (7th Cir. 1998). In short,

inconsistent verdicts do not entitle the defendant to relief. United States v. Pesman,

443 F.3d 912, 915 (7th Cir. 2006).

Next, counsel considers whether Benson could argue that he was prejudiced

by the instructions the court gave to the jury after they inquired about the proper

verdict forms to complete. Benson’s counsel approved the instructions given at

trial, so we would only review the instructions for plain error and would only

reverse if the error stemming from the instructions seriously affected the fairness,

integrity, or public reputation of the proceedings below. United States v. Ackley,

296 F.3d 603, 606 (7th Cir. 2002). Here, the jury reported to the judge that they

had already reached a verdict and merely wanted to know what forms to fill out. 

The judge explained that first they should look to the forms for armed robbery and

fill out either the guilty or not guilty form, depending upon their decision. He said

the same for the possession count. He instructed that the jury should go on to the

lesser offense of unarmed robbery only if they found Benson not guilty of the armed

robbery and possession counts. He also explained that the armed robbery and

possession counts were independent and Benson did not have to be found guilty of

possessing a handgun to be guilty of armed robbery. These instructions all state

correct principles of law and do not evince any plain error. See id. The judge’s

statement regarding Benson’s admission of guilt through his counsel’s opening

statement does not call into question the fairness of the proceedings because the

statement merely repeated Benson’s own admission. Therefore, we agree with

counsel that any challenge on this ground would be frivolous.

Next, counsel considers whether Benson could successfully challenge his

sentence as unreasonable. Because Benson has two prior convictions for armed

robbery, the district court correctly found that § 4B1.1 of the Sentencing Guidelines
No. 06-2115 Page 4

requires he receive an offence level of 34 and a criminal history category of VI. 

Benson had a resultant sentencing range of 262-327 months, with a statutory

maximum of 300 months. After hearing argument, the judge took account of factors

in this case relevant to 18 U.S.C. § 3353(a), including that this was Benson’s third

armed robbery conviction and that he admitted his involvement in the crime at

trial. The judge imposed a sentence of 285 months, and neither Benson nor his

counsel now identify any reason why this sentence is unreasonable. Not only is a

sentence within the guidelines range presumptively reasonable, United States v.

Gama-Gonzalez, 469 F.3d 1109, 1110-11 (7th Cir. 2006), but even without the

presumption there is no non-frivolous basis for suggesting that Benson’s sentence is

unreasonable. 

Benson argues in his 51(b) response that he received ineffective assistance of

counsel at trial, and his appellate counsel also considers this argument in his

Anders brief. But a proper record has not been developed to fully examine the

merits of the various potential claims of ineffectiveness, and error is not apparent

on the record alone. Therefore Benson’s ineffective assistance claim is better suited

to collateral attack, at which time a full record may be developed. See United States

v. Harris, 394 F.3d 543, 557-58 (7th Cir. 2005) (citing Massaro v. United States, 538

U.S. 500, 504-505 (2003)).

Benson also argues that his crime was not a federal offense because the

government did not prove that the victim credit union was federally insured. But

Benson stipulated at trial that the credit union was federally insured, and that

stipulation served to satisfy the burden of proof on that element of the offense. See

United States v. Birk, 453 F.3d 893, 897 (7th Cir. 2006).

Next, Benson argues that when the judge questioned him about his assent to

his counsel’s concession in opening statement that he robbed the bank, the judge

subjected him to a “de facto” change of plea (pleading guilty to the lesser included

offense of unarmed robbery) without the required Rule 11 warnings. He argues

that he was harmed by this error during jury deliberations when the judge told the

jury that Benson had essentially admitted to unarmed robbery. But the jury

convicted Benson of armed robbery, not of unarmed robbery, and thus his admission

had no bearing on his conviction. If anything, his admission to unarmed robbery

helped his case because the jury could find him guilty of armed robbery based on

the fact that his cohort definitely used the gun, while acquitting him, as the jury

did, on the possession of a firearm offense. A conviction on the latter offense would

have required a consecutive sentence. 18 U.S.C. § 924(c)(1)(D)(ii). In any event, Rule

11 does not apply because Benson did not plead guilty. 
No. 06-2115 Page 5

Next, Benson argues that the judge’s questions to him following his counsel’s

opening statement were compelled testimony in violation of the Fifth Amendment

privilege against self-incrimination. Benson’s privilege, however, was knowingly

waived when he voluntarily answered the questions of the judge in the presence of

and with the assent of his attorney. Mitchell v. United States, 526 U.S. 314, 321

(1999); Rogers v. United States, 340 U.S. 367, 440 (1951). Accordingly, any

challenge on this ground would be frivolous.

Finally, Benson argues that his counsel’s Anders brief runs contrary to

counsel’s obligation to argue his appeal. But counsel may and should file an Anders

brief if, after careful consideration, counsel does not see any non-frivolous issues for

appeal. 386 U.S. at 744. We have scrutinized counsel’s brief as well as Benson’s

response for any non-frivolous issues, and find none. 

For the foregoing reasons, the motion to withdraw is GRANTED and the

appeal is DISMISSED.